Smart v Webster [2017] NZFC 7264

Published 07 August 2018

Failure to make provision in will — exclusion by will-maker — undue influence — moral duty — whether adequate provision was made for applicant in will — testamentary capacity — whether applicant had received a gift or a loan — Williams v Aucutt [2000] 2 NZLR 479 — Henry v Henry [2007] NZCA 42 — Family Protection Act. The applicant sought that the court exercise it's discretion under the Family Protection Act as she believed that the testatrix (will-maker) had failed to make adequate provision to her under the will in breach of the moral duty owed to the applicant. Two main issues were addressed: whether the will-maker was unduly influenced by her other children; and whether she had capacity to make the contested will. The court found that the will was rational on it's face and the will-maker was presumed to have been both competent and acting voluntarily. The will was found to be valid and there was no proof of undue influence having been exerted by the applicant's siblings; findings made with reference to the express reasons given by the will-maker for not including the applicant in the will. The court noted that it did not have jurisdiction to make a finding as to the will-maker's testamentary capacity but felt that it had a duty to address the submissions made on the point, and did so in the context of discussing whether the will-maker had breached her moral duty to the applicant. The court then turned to consider whether the will-maker had breached her moral duty to the applicant by failing to make adequate provisions to support her; and if so, how the breach should be remedied. With reference to "Henry" it was noted that an analysis of the will-maker's moral duty would depend on the contributions of the applicant to her family, and a consideration of the extent to which the applicant received benefits from the will-maker during her lifetime. The main point of contention was a transaction between the applicant and the will-maker concerning the sale of land for $18,000 with consideration being recorded as "natural love and affection". The applicant's siblings considered this transaction to be a gift to the applicant; the applicant considered it to be a loan from the will-maker. The court found that the transaction was a "gift" and that it was not insubstantial. The court found that the will-maker had not evaluated her moral duty to the applicant within the context of her whole life and her competence was compromised in so far as her ability to objectively consider the moral duty to each of her children. The applicant had not undertaken any disentitling conduct and the will-maker had not recognised the applicant's needs. The court found that the applicant required recognition of her familial connection and the court accordingly exercised it's discretion in making an order in favour of the applicant. In making the order, the court accounted for the gift received by the applicant during the will-maker's lifetime and the other competing moral claims. The applicant was awarded $29,000 which represented approximately seven per cent of the estate. Judgment Date: 17 October 2017. * * * Note: Names have been changed to comply with legal requirements * * *